WAFS v MIMIA [2004] HCATrans 111 (2 April 2004)

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WAFS v MIMIA [2004] HCATrans 111 (2 April 2004)

Last Updated: 8 April 2004

[2004] HCATrans 111

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Perth No P99 of 2002

B e t w e e n -

WAFS

Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

Application for special leave to appeal

KIRBY J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

FROM PERTH BY VIDEO LINK TO CANBERRA

ON FRIDAY, 2 APRIL 2004, AT 1.11 PM

Copyright in the High Court of Australia

MR M.J. HAWKINS: If the Court pleases, I appear for the applicant. (instructed by the applicant)

MR J.D. ALLANSON: If the Court pleases, I appear for the respondent. (instructed by Blake Dawson Waldron)

KIRBY J: Yes, Mr Hawkins.

MR HAWKINS: Your Honour, I want to, if I may, make an application for an adjournment of the special leave application.

KIRBY J: Yes, what is the basis of the application?

MR HAWKINS: The applicant represented himself before the Refugee Review Tribunal, represented himself before the Federal Court and represented himself before the Full Federal Court. The transcript of the Refugee Review Tribunal proceedings was not prepared. In other words, there is a tape recording, as I understand it, but no transcript. The Court has not had regard to the transcript before the Tribunal, but has accepted on its face the findings of fact made by the Tribunal. What I request is the adjournment so that I could have the opportunity of listening to the tapes when they become available so that I can then properly advise the applicant. The applicant is in detention. He has been for more than three years. He is in Baxter; I am in Perth. There have been difficulties in speaking to him because he does not speak English. I have had to rely and he has had to rely on the good grace of a fellow detainee to translate on those occasions when we have been able to talk on the telephone.

KIRBY J: What is the attitude of the Minister to this application, Mr Allanson?

MR ALLANSON: If your Honours please, the application to adjourn is opposed. It is not opposed on the basis of there being particular prejudice, but on the basis of futility. The request for an adjournment is so that the applicant’s counsel can consider material which was not before the Full Court and not before the single judge of the Federal Court and in circumstances which are unrelated to the question of any possible error in the treatment of the matter by the Full Court. To go back to the tapes when the Full Court was not asked to look at them or to have regard to the content of them at all, we would say is an unnecessary step.

KIRBY J: But, one of the bases in the Federal Court was apparently the applicant’s weakness as a result of a hunger strike, or so it is said, and should he not have the opportunity now, being represented for the first time, to have counsel look at that transcript and listen to the tapes and consider them having regard to that complaint? I mean, the Minister will be fully protected against the raising of any entirely new matters, but having gone so far in this chronicle, is that not a proper matter for this Court to protect?

MR ALLANSON: Your Honour, firstly, that was not one of the matters that was raised in the application for leave. The main point we make, your Honour, is the way in which the Full Court dealt with the question of the applicant’s weakness or inability to represent himself before the Tribunal and that was on the basis that the applicant had asked for an adjournment, having being told that he would not receive an adjournment then apparently went on a hunger strike in order to frustrate the process of the Tribunal or to protest against the process of the Tribunal.

KIRBY J: I see the force of what you are saying, but really the only downside of acceding to the request is the cost to the Australian taxpayer of keeping the applicant in detention for a longer period. Against that has to be weighed the integrity of our system and the seriousness for the applicant, potentially, of the decision that is made and he would understand, it would have been explained to him, that the price of the adjournment is that he just has to remain in immigration detention until the next listing when this Court can come to his application again. So that what is the real disadvantage to the Minister of acceding to the request now?

MR ALLANSON: Your Honour, we do not claim any prejudice other than the prejudice of delay and we do not claim that to be strong. The point that I make, your Honour, though is that the way in which the Full Court dealt with the hunger strike is that which appears on page 36 of the application book at line 35. The Full Court said:

Further, the evidence before us, such as it is, rather suggests that the appellant deliberately embarked upon the hunger strike in an attempt to force an adjournment. We are of the view that if an applicant deliberately sets out to frustrate the hearing by the Tribunal by embarking upon a hunger strike, he can later not be heard to complain –

That, your Honour, we would say, is an appropriate and a correct statement of the requirements of natural justice and the requirement to give the applicant a hearing at the time. We oppose the adjournment on the basis of the futility of that claim, if it would now be put up. That is the submission, your Honour.

KIRBY J: Well, that principle might well turn out to be correct because it is a practical principle looking at the practicalities, but, on the other hand, one can at least imagine the case where a person was so weak that he really could not take part although he was there in body or form and that that led
to a procedural unfairness in the particular case. At the very least one would feel more comfortable disposing of the matter at the end of this long saga of litigation if Mr Hawkins has had the chance to look at the tape, listen to the tape and indicate whether there is anything in it.

MR ALLANSON: Your Honour, I do not know if it is pertinent to that, but I might mention that the Full Court of the Federal Court has indeed given judgment in a case where it found, on the basis of admissible evidence, that an applicant had been unable to participate properly in a hearing. It has been the subject of consideration by the Full Court of the Federal Court. All I say is that in this case, the Full Court dismissed that part of the appeal on the basis that it was self-inflicted. I do not know that I can add anything further to that, your Honours.

KIRBY J: When were you given notice of this application?

MR ALLANSON: On Monday we were told - - -

KIRBY J: Monday of this week.

MR ALLANSON: Monday of this week, yes, your Honour.

KIRBY J: Yes. Mr Hawkins, what is the position so far as costs are concerned? This is a very late application. When did you come into the matter?

MR HAWKINS: I was asked in late March if I would look at the matter. I had other material on. I looked at it on the weekend and formed the view that I could not adequately advise the applicant without listening to the tapes and first thing on Monday I attempted to contact the respondents listed as to obtain the tapes and the transcript.

KIRBY J: Well, it would seem appropriate that the costs of the adjournment would have to be borne by your client. That may not have a great practical significance in his predicament, but it would seem to be the proper order seeing as this is a very late application and the Minister is here by his counsel.

MR HAWKINS: Yes.

KIRBY J: Do you have anything to say against that?

MR HAWKINS: Against that, your Honour, as your Honour as pointed out, there is the risk, the prejudice, to the applicant’s appeal.

KIRBY J: I am saying that if the Court grants the adjournment, it would have to be on terms that your client pays the cost thrown away today.

MR HAWKINS: Your Honour, the point I wanted to go on is whether or not it was reasonable to oppose an application for an adjournment given the notice is given and that the circumstances are explained.

KIRBY J: You say, in the circumstances, you gave notice on Monday and the Minister ought reasonably to have consented on the basis that your client was remaining in detention?

MR HAWKINS: Yes.

KIRBY J: Very well. The Court will adjourn the hearing of this application on the basis that Mr Hawkins has put to the Court on behalf of the applicant. However, the Court considers that the applicant should bear the costs of the proceedings before the Court today. The matter will be re-listed in the next available special leave list from Perth. Necessarily the applicant will remain in immigration detention in the meantime, unless some other eventuality occurs.

MR HAWKINS: Your Honours, I just wanted to thank the Court, on the applicant’s behalf, for that generosity of spirit.

KIRBY J: That is very nice of you, Mr Hawkins. We do not get thanked very much in this place. Thank you.

AT 1.21 PM THE MATTER WAS ADJOURNED